ERSP: No, Not Just Something Kermit Would Say

When I saw an interesting recent press release from The Electronic Retailing Self Regulatory Program ("ERSP") concerning its review of VitaminVape Vitamin B12 Vaporizer advertising (discussed in more detail below), it occurred to me that I haven't done any blogging about this important arm of the Advertising Self-Regulatory Council (ASRC). ERSP is NAD's sibling. It addresses the truthfulness and accuracy of the primary or coreefficacy or performance claims that are communicated in national direct response advertising, defined in ERSP's Procedures as "any commercial message, in any electronic medium of dissemination, in which consumers are asked to place an order or obtain additional information regarding a product or service by any means utilizing an electronic device, such as a toll-free telephone number, e-mail or online request, or interactive TV." So, e-commerce sites as well as infomercials fall under ERSP's jurisdiction.

As with NAD's cases, ERSP's cases originate from inquiries brought by competitors and consumers, as well as through ERSP’s ongoing monitoring program. Some of the key differences between ERSP and NAD are that NAD addresses all types of advertising and ERSP focuses on direct response ads; NAD will address as many claims as the challenger chooses, while ERSP limits its inquiry to "those representations which are deemed by ERSP to be most significant and fundamental in the marketer’s communication of a product’s or service’s attributes or characteristics"; and the person or entity initiating the inquiry has the option of participating, which means it has the option not to, and to remain anonymous (in which case it will not see the marketer's substantiation or response). And, the filing fees at ERSP are lower than at NAD.

Like NAD, ERSP will analyze the substantiation for both express and implied claims to determine if there's a reasonable basis for those claims, something it found to be missing in the VitaminVape Vitamin B12 Vaporizer case. In that case, ERSP analyzed direct response advertising for the VitaminVape vaporizer as part of its routine monitoring program. ERSP analyzed a number of core claims for the product made by the marketer directly and through consumer and expert testimonials and reviews, including claims that the vaporizer contains hundreds of puffs of natural energy with no caffeine, no sugar crash, no calories, and no nicotine; that it delivers all the benefits of B12; and that it's better than shots and pills.

ERSP started its analysis by noting that for health-related claims, the gold standard for competent and reliable scientific evidence are human clinical trials that are methodologically sound and statistically significant to the 95% confidence level. Moreover, the results of such studies should translate into meaningful benefits for consumers that relate directly to the performance attributes promised by the advertising.

Here, however, the marketer's product testing was very limited and, ERSP found, could not adequately support many of the express or implied claims. In addition, the results of three other studies submitted by the marketer as support for the claims could not be fairly extrapolated to the marketer's product because none of these studies used a personal vaporizer that was the same or substantially similar to the VitaminVape vaporizer and the vitamin B12 formulas in the studies were not the same as the VitaminVape formula. Accordingly, ERSP recommended that VitaminVape discontinue or modify a number of its claims.

With the explosion of e-commerce and direct-to-consumer marketing, ERSP should remain top-of-mind for marketers, not only for their own marketing review but as potential challengers of competitors' claims.

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ERSP recommended that in the absence of reliable testing on the advertised product or other reliable supporting evidence, the marketer discontinue any express or implied claims that the VitaminVape will provide energy or other benefits of vitamin B12. ERSP also recommended that the marketer modify or discontinue customer reviews that were featured in the advertising that could be construed as communicating express performance and/or comparative claims.